Decision

Bargaining Unit Decision

Updated 21 November 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1285/2022

24 October 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

The Parties:

RMT

and

Isles of Scilly Shipping (Guernsey) Ltd

1. Introduction

1) RMT (the Union) submitted an application to the CAC dated 11 August 2022 that it should be recognised for collective bargaining purposes by Isles of Scilly Steamship Company Ltd (the Employer) for a bargaining unit comprising “Motorman, Bosun, Pursers and Able Seaman employed on board the vessel the Scillonian 111”. The location of the bargaining unit was given as on board the vessel the Scillonian 111. The application was received by the CAC on 11 August 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 17 August 2022 which was copied to the Union. ^{[footnote 1]}

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case. The Panel consisted of Mrs Sarah Havlin, Panel Chair, and, as Members, Mrs Susan Jordan and Ms Joanna Brown. The Case Manager appointed to support the Panel was Joanne Curtis.

3) By a decision dated 8 September 2022 the Panel accepted the Union’s application. The Parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. As no agreement was reached, the Parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. A virtual hearing was held on 20 October 2022 and the names of those who attended the hearing are appended to this decision.

4) Both parties provided helpful written submissions prior to the hearing together with supporting documentation. At the hearing the Panel heard oral submissions from Tom Weise, Marine Superintendent and Amanda Pratley, HR Advisor on behalf of Isles of Scilly Shipping (Guernsey) Ltd and also Darren Procter on behalf of the RMT. The Panel would also like to thank the parties for answering the Panel’s many questions during the hearing. The information they provided was particularly helpful to the Panel.

2. Points clarified prior to the hearing

5) On 17 October 2022 the Employer clarified that there were four (4) permanent Able Boatman (AB) on the vessel named Gry Maritha plus one (1) temporary Able Seaman (AS) who was currently providing absence cover. It added that the Seafarer Employment Agreements (SEAs) stated that such workers may be required to work on any vessel and do on occasions. It wished the Panel to note that workers were required to work on a 1:1 basis all year round since the Gry Maritha sailed all year round and that this was reflected in their SEAs. The Employer went on to say that it would like some assurance that the regular crew of the Gry Maritha would want to be part of any bargaining unit. Finally, it asked the Panel to note that Able Boatman/Able Seaman were the same rating.

6) On 19 October 2022 the Union clarified that the Company currently had 2 vessels, and did not currently operate, own or charter vessels outside of the Scillonian III or Gry Maritha. It added that it understood that those employed onboard the Gry Maritha within the grades included within the proposed bargaining unit were permanent. The Union acknowledged that the Employer had a place of work clause which referred to working on any vessel, owned, managed or chartered by the company. It stated that the reason it only mentioned the AB’s on the Gry Maritha in its submission was that there were no Pursers, Bosuns or Motormen employed onboard that vessel. The Union clarified that if the contracts of those workers meant that there was a potential for this to happen then it would accept that. The Union did however state that looking at the organisational chart for the Gry Maritha there was no mention of any Pursers, Bosuns or Motormen working onboard. The Union added that given the small amount of AB’s namely four (4) onboard the additional cargo vessel, it would be content to accept them into the proposed bargaining unit in order to avoid fragmentation and ensure that it was a practical bargaining unit for the Employer.

3. Issues for consideration by the Panel

7) The Panel is required, by paragraph 19(2) of Schedule A1 to the Act (the Schedule), to decide whether the Union’s proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate. The Panel must also have regard to paragraph 171 of the Schedule which provides that “[i]n exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.”

8) The views of each party relating to the provisions as set out in paragraph 5 above as expressed to the Panel in their written and oral submissions are summarised below.

4. Summary of the submissions made by the Union

9) The Union submitted that the bargaining unit it had chosen was in keeping with the criteria specified in Schedule A1 of the Act (the Schedule). The Union stated that the bargaining unit consisted of a defined group of workers who carried out roles as part of a cohesive team in order to operate a safe passenger ferry which operated between Penzance and the Isles of Scilly. It argued that all workers in the proposed bargaining unit worked at the same location and shared the same characteristics. The Union went on to say that it had made several attempts to reach an agreed bargaining unit by contacting the Employer to try and arrange a meeting but did not receive a positive response. The Union attached copies of the emails it had sent to the Employer dated 14 September 2022 and 21 September 2022 together with the Employer’s response dated 26 September.

10) The Union submitted that it previously had a voluntary collective bargaining agreement with the Employer (which it attached to its statement) that covered this group of workers and it believed that this further demonstrated the appropriateness of the proposed bargaining unit. The Union stated that it believed its proposal was appropriate and was compatible with effective management, The Union noted the Employer’s comments in previous correspondence to the CAC and stated that if given the opportunity it would like to discuss the Employer’s concerns surrounding the practicalities of the proposed bargaining unit.

11) The Union requested that the Panel give consideration to the fact that, as pointed out by the Employer, there were four (4) Able Seaman who were interchangeable between the two current vessels within the fleet which was in accordance with the current seafarer employment agreements (contracts) for those workers. The previous voluntary collective agreement had covered those workers (Able Seaman and Motormen) employed within the company and was not restricted to a specific vessel. The Union added that given the small number of workers four (4) onboard the additional cargo vessel, it would be content to accept them into the proposed bargaining unit in order to avoid fragmentation and ensure that it was a practical bargaining unit for the Employer. The Union stated that it believed this was the only concern the Employer had with the proposed bargaining unit and that the suggestion as set out above should address this concern. The Union concluded by saying that it was not aware that the Employer had any other concerns regarding the proposed bargaining unit and the Union would be content to proceed on the basis of its original proposed bargaining unit or one that incorporated the four additional Able Seaman.

5. Summary of Submissions made by the Employer

12) The Employer submitted that it had not had the opportunity to meet with the Union due to the busy schedules of key employees and also following representations from some employees which it needed time to consider. This meant that the Employer was not in a position to reach an agreement with the Union regarding the proposed bargaining unit on Scillonian III, which was just one of its vessels. It stated that the Company ended a voluntary collective bargaining agreement with the Union in March 2021 which was uncontested. The Employer added that the agreement was ended as it felt that it was not working in the best interests of both the Company and its workers. The Employer added that there was currently no other existing national or local bargaining units representing the Company’s Marine workers.

13) The Employer said that it felt strongly that the formation of a separate bargaining unit for 10 workers on Scillonian III, amongst the wider Scillonian III crew and other vessels, was not considered desirable for the following reasons:

a) Out of the 10 agreed workers in the bargaining unit, 4 were seasonally employed and were due to leave the Company by no later than 8 November 2022. It stated that there was no guarantee that the same workers would be re-employed in 2023.

b) The seasonal workers had different terms and conditions to those of permanent workers as they were employed during Scillonian III’s sailing season which ran from March until early November each year. It went on to say that seasonal workers were employed on a 1:1 rotation, the same as permanent workers during the sailing season. However, during the winter season when Scillonian III did not sail, the permanent workers were employed on a Monday – Friday basis (winter hours) as they were required to undertake the vital maintenance work on the ship during this time as there were no daily sailing duties.

c) Seasonal workers who were not employed during the period of November to March should not be eligible to take part in any negotiations with the Company during this period as they would not be regarded as employees during this period.

14) The Employer stated that it had received individual but confidential representations from some workers who were Union members, stating that whilst they wished to be individual members of a Trade Union, they did not wish to be part of the proposed bargaining unit. It stated that it had also received confidential representations from non-union members who had expressed that they did not wish to be included in the proposed bargaining unit as they were concerned that they would have no say in any negotiations due to being excluded in the past, when the former voluntary bargaining unit was in place. The Employer added that those workers who had come forward expressed a wish to remain anonymous due to concerns of repercussions. It added that other workers had advised that they did not wish to be part of any bargaining unit but felt under pressure from certain individuals to join the union. The Employer went on to say that this had created tension within the crew, which was not compatible with the close working relationship that those on board would normally enjoy.

15) The Employer disagreed with the fact that the proposed bargaining unit was a “self-contained group of workers”. The Employer stated that the workers could be called upon to work upon any of its vessels and that they could also be asked to move between vessels which would make any distinct bargaining unit unworkable. The Employer went on to say that the workers were deployed within separate crews and under separate management. It stated that the workers were scheduled to work at different times during the Summer season. The Employer referred it its “marine organisational chart” (attached to its statement) which showed the whole crew and management within the divisions and work locations. ^{[footnote 2]}

16) Finally, the Employer wished to propose that seasonal workers should be excluded from being part of any proposed bargaining unit and stated that “in light of the confidential representations of some workers, an independent ballot should be conducted of remaining workers without Company or Trade Union influence.”

6. Considerations

17) The Panel is required, by paragraph 19(2) of the Schedule to the Act, to decide whether the proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate.

18) The Panel must also have regard to paragraph 171 of the Schedule which provides that “[i]n exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.” The Panel’s decision has been taken after a full and detailed consideration of the views of both the Union and the Employer as expressed in their written submissions and as amplified during the course of the hearing. Both parties confirmed at the conclusion of the hearing that the hearing had been conducted fairly and that they had had the opportunity to say everything that they had wanted to say to the Panel.

19) The Panel’s first responsibility is to decide, in accordance with paragraph 19(2) of the Schedule, whether the Union’s proposed bargaining unit is appropriate. The Panel notes that it cannot reject the Union’s proposed bargaining unit because it feels that a different unit would be more appropriate nor, in considering whether it is compatible with effective management, can it consider whether it is the most effective or desirable unit in that context. ^{[footnote 3]}

20) The Panel considered the issue of the four seasonal workers contained within the proposed bargaining unit. A total of eleven workers, namely the crew of the Scillonian III and with the job titles of Bosun, Able Seaman, Motorman and Purser had been identified in the proposed bargaining unit. It was not disputed that four of those eleven workers were not permanent workers, that their seasonal terms and conditions were different from the permanent crew (currently seven in number) within the proposed bargaining unit, and that those seasonal workers could be recurring casual staff who came back every year or could be entirely new workers on the ship. It is the Panel’s assessment that the difference between the employment terms and conditions of the seasonal workers and those of the permanent crew on board the vessel in question is significant. The Panel therefore concludes that the appropriate bargaining unit should exclude the four seasonal workers.

21) Having decided that the Union’s proposed bargaining unit is not appropriate the Panel’s next responsibility is to decide a bargaining unit which is appropriate. The Panel reached the view that the appropriate bargaining unit is as follows:

‘The workers on the Scillonian III vessel with the job titles of Bosun, Able Seaman Motorman and Purser, excluding those who are seasonal workers.’

The Panel considers that this bargaining unit is compatible with effective management. The determined bargaining unit consists of a distinct group of workers with a particular skill level, who all work on the same vessel. It has been accepted that although such workers can be asked to work on another vessel in accordance with their contracts of employment this is rare and is mainly used to cover sickness absence. The workers within the determined bargaining unit all have the same terms and conditions of employment and the same line management.

22) The Panel has considered the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with the unit to be compatible with effective management. The views of the Employer and the Union, as described earlier in this decision, have been fully considered. The Panel does not consider that there are any existing national or local bargaining arrangements in this case. The bargaining unit set out in paragraph 21 above does not avoid completely the risk of small fragmented bargaining units within the undertaking because it does not cover all categories of staff. However, the Panel is satisfied that its decision is consistent with the object set out in paragraph 171 of the Schedule.

7. Decision

23) The Panel’s decision is that the appropriate bargaining unit is

‘The workers on the Scillonian III vessel with the job titles of Bosun, Able Seaman Motorman and Purser, excluding those who are seasonal workers’

24) As the appropriate bargaining unit differs from the proposed bargaining unit, the Panel will proceed under paragraph 20(2) of the Schedule to decide if the application is invalid within the terms of paragraphs 43 to 50 of the Schedule.

Panel

Mrs Sarah Havlin, Panel Chair

Mrs Susan Jordan

Ms Joanna Brown

24 October 2022

8. Appendix

Names of those who attended the hearing:

For the Union

Darren Procter

Alan Pottage

Kevin Hall

For the Employer

Tom Weise - Marine Superintendent

Amanda Pratley - HR Advisor

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1. In the covering letter sent in with its formal response the Employer stated that its correct identity was Isles of Scilly Shipping (Guernsey) Ltd and the Panel Chair directed that the CAC amend its records accordingly. Neither the Employer or the Union objected to this change. ↩

2. The written submissions, contracts of employment and marine organisational chart provided by the Employer use Able Boatman/Able Seaman interchangeably. The Employer confirmed to the Case Manager on 17 October 2022 that they are both on the same rating. ↩

3. R (on the application of Cable and Wireless Services UK Ltd v CAC [2008] EWHC 115 (Admin), Collins J at [9]. ↩